CJEU, 5th chamber, March 20, 2014, No C-639/11

THE COURT (Fifth Chamber),

Judgment

1 By its application, the European Commission asks the Court to declare that, by making registration in its territory of passenger vehicles which have their steering equipment on the right-hand side, whether they are new or previously registered in other Member States, dependent on the repositioning of the steering wheel to the left-hand side, the Republic of Poland has failed to fulfil its obligations under Article 2a of Council Directive 70-311-EEC of 8 June 1970 on the approximation of the laws of the Member States relating to the steering equipment for motor vehicles and their trailers (OJ 1970 L 133, p. 10), Article 4(3) of Directive 2007-46-EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (Framework Directive) (OJ 2007 L 263, p. 1), and under Article 34 TFEU.

Legal context

European Union law

2 Recitals 2, 3 and 14 in the preamble to Directive 2007-46 state:

'(2) For the purposes of the establishment and operation of the internal market of the Community, it is appropriate to replace the Member States' approval systems with a Community approval procedure based on the principle of total harmonisation.

(3) The technical requirements applicable to systems, components, separate technical units and vehicles should be harmonised and specified in regulatory acts. Those regulatory acts should primarily seek to ensure a high level of road safety, health protection, environmental protection, energy efficiency and protection against unauthorised use.

...

(14) The main objective of the legislation on the approval of vehicles is to ensure that new vehicles, components and separate technical units put on the market provide a high level of safety and environmental protection. This aim should not be impaired by the fitting of certain parts or equipment after vehicles have been placed on the market or have entered service. Thus, appropriate measures should be taken in order to make sure that parts or equipment which can be fitted to vehicles and which are capable of significantly impairing the functioning of systems that are essential in terms of safety or environmental protection, are subject to a prior control by an approval authority before they are offered for sale. These measures should consist of technical provisions concerning the requirements that those parts or equipment have to comply with.'

3 Article 1 of Directive 2007-46, entitled 'Subject matter', provides:

'This Directive establishes a harmonised framework containing the administrative provisions and general technical requirements for approval of all new vehicles within its scope and of the systems, components and separate technical units intended for those vehicles, with a view to facilitating their registration, sale and entry into service within the Community.

This Directive also establishes the provisions for the sale and entry into service of parts and equipment intended for vehicles approved in accordance with this Directive.

Specific technical requirements concerning the construction and functioning of vehicles shall be laid down in application of this Directive in regulatory acts, the exhaustive list of which is set out in Annex IV.'

4 Article 4 of that directive, entitled 'Obligations of Member States', provides in paragraph 3 thereof:

'Member States shall register or permit the sale or entry into service only of such vehicles, components and separate technical units as satisfy the requirements of this Directive.

They shall not prohibit, restrict or impede the registration, sale, entry into service or circulation on the road of vehicles, components or separate technical units, on grounds related to aspects of their construction and functioning covered by this Directive, if they satisfy the requirements of the latter.'

5 Article 9 of that directive, entitled 'Specific provisions concerning vehicles', provides in paragraph 1(a) thereof:

'Member States shall grant an EC approval in respect of:

(a) a type of vehicle which conforms to the particulars in the information folder and which meets the technical requirements specified by the relevant regulatory acts listed in Annex IV'.

6 Annex IV, part I, to that directive contains the list of directives, called 'separate directives', establishing the technical requirements specifically applicable for the purpose of EC type-approval.

7 Article 18 of Directive 2007-46, entitled 'Certificate of conformity', provides in the first subparagraph of paragraph 1 thereof:

'The manufacturer, in his capacity as the holder of an EC type-approval of a vehicle, shall deliver a certificate of conformity to accompany each vehicle, whether complete, incomplete or completed, that is manufactured in conformity with the approved vehicle type.'

8 Article 26 of that directive, entitled 'Registration, sale and entry into service of vehicles', provides in the first subparagraph of paragraph 1 thereof:

'Without prejudice to the provisions of Articles 29 and 30, Member States shall register, and permit the sale or entry into service of, vehicles only if they are accompanied by a valid certificate of conformity issued in accordance with Article 18.'

9 Annex I to that directive is entitled 'Complete list of information for the purpose of EC type-approval of vehicles'. Point 1 of that annex, entitled 'General construction characteristics of the vehicle', provides:

'...

1.8. Hand of drive: left-right (1).

1.8.1:

Vehicle is equipped to be driven in right-left (1) hand traffic.

...'

10 Annex III to that directive is entitled 'Information document for the purpose of EC type-approval of vehicles'. Point 1 of that annex, entitled 'General construction characteristics of the vehicle', provides:

'...

1.8. Hand of drive: left-right (1),

1.8.1:

Vehicle is equipped to be driven in right-left (1) hand traffic.

...'

The wording of the explanatory notes concerning the numbered reference (1) of Point 1 of Annex III is the same as that of the notes relating to Point 1 of Annex I, as it is set out in paragraph 9 above.

11 Annex IX to Directive 2007-46, as replaced by Commission Regulation (EC) No 385-2009 of 7 May 2009 (OJ 2009 L 118, p. 13), for the purposes of its adaptation to scientific and technological progress, is entitled 'EC Certificate of conformity'. Point 0 of that annex, entitled 'Objectives', is worded as follows:

'The certificate of conformity is a statement delivered by the vehicle manufacturer to the buyer in order to assure him that the vehicle he has acquired complies with the legislation in force in the European Union at the time it was produced.

The certificate of conformity also serves the purpose to enable the competent authorities of the Member States to register vehicles without having to require the applicant to supply additional technical documentation.

...'

12 Page 1 of that certificate contains the following statement :

'The undersigned ... hereby certifies that the vehicle:

...

conforms in every respect to the type described in the approval ... and

may be permanently registered in the Member States in which the hand of drive is left-right ... .'

13 The explanatory notes relating to Annex IX to Directive 2007-46 provide in (b) and (d):

'(b) Indicate whether the vehicle is suitable for use in either right or left-hand traffic or both right and left-hand traffic.

...

(d) This statement shall not restrict the right of the Member States to require technical adaptations in order to allow the registration of a vehicle in a Member State other than the one for which it was intended when the direction of the traffic is on the opposite side of the road.'

14 Directive 70-311 is one of the separate directives referred to in Annex IV to Directive 2007-46. Article 2a of Directive 70-311, added to the latter by the Documents concerning the accession to the European Communities of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain Northern Ireland, Act concerning the conditions of accession and the adjustments to the Treaties (OJ 1972 L 73, p. 14), provides:

'No Member State may refuse registration or prohibit the sale, registration, entry into service or use of a vehicle on grounds relating to their steering equipment if these satisfy the requirements set out in the Annex to this Directive.'

15 Annex I to that directive is entitled 'Scope, definitions, application for EC typeapproval, grant of EC type-approval, construction provisions, test requirements, modification of the type and amendments to approvals, conformity of production'.

16 Point 1.3 of that annex is worded as follows:

'[For the purposes of this Directive:]

...

steering equipment means all the equipment the purpose of which is to determine the direction of movement of the vehicle.

The steering equipment consists of:

- the steering control,

- the steering transmission,

- the steering-wheels,

- the energy supply, if any.'

17 Point 4.1.1 of that annex provides:

'The steering equipment shall ensure easy and safe handling of the vehicle up to its maximum design speed ... .'

18 Appendix 1 of Annex I to Directive 70-311 is entitled 'Information Document ... pursuant to Annex I to Council Directive 70-156-EEC relating to EC typeapproval of a vehicle with respect to the steering equipment ...'.

Point 1 of that appendix, entitled 'General construction characteristics of the vehicle', is worded as follows:

'...

1.8. Hand of drive: left-right ...

... .'

Polish law

19 In accordance with Article 68 of the Law of 22 June 1997 on road traffic, as amended (Dz. U. of 2005, No 108, position 908), the manufacturer or importer of a new motor vehicle is to be required to obtain, for each new type of vehicle, an approval certificate issued by the Minister for Transport, except where the manufacturer or importer has obtained an approval certificate issued, in accordance with the European Community type-approval system, by the competent authority of a Member State of the European Union.

20 The technical inspection for the purposes of the registration and bringing into use of a vehicle consists in ascertaining whether the latter satisfies the technical requirements described in that law and in the Regulation of the Minister for Infrastructure of 31 December 2002 concerning the technical conditions applicable to vehicles and the extent of their essential equipment, as amended (Dz. z 2003 r., Nr 32, poz. 262, pozn. zm. U. of 2003, No 32, position 262).

21 Paragraph 9(2) of that regulation provides:

'The steering wheel of a vehicle with more than three wheels, the construction of which allows it to reach a speed in excess of 40 km-h, shall not be positioned on the right hand side of the vehicle.'

22 The scope of the technical inspection and the procedures for carrying it out were laid down by the Regulation of the Minister for Infrastructure of 16 December 2003, as amended (Dz. z 2003 r., Nr 227, poz. 2250, pozn. zm. U. de 2003, No 227, position 2250). According to Point 5.1 of Annex I to that regulation, the positioning of the steering-wheel on the right-hand side is an essential criterion which makes it possible to establish that the technical state of a vehicle with more than three wheels, the speed of which may exceed 40 km-h is not satisfactory and does not satisfy the technical requirements. The same provision appears in Point 6.1 of Annex I to the Regulation of the Minister for Infrastructure of 18 September 2009 (Dz. U. de 2009, n° 155, position 1232), which replaced and repealed that regulation of 16 December 2003 as of 22 September 2009.

The pre-litigation procedure

23 In 2008, the Commission received a series of complaints from people wishing to register passenger vehicles in Poland originating in the United Kingdom and Ireland. It involved people of Polish origin who exercised a professional activity in those Member States and had bought a passenger vehicle there which they wish to register on their return to Poland. However, they are obliged, on the basis of the Polish legislation, to reposition the steering-wheel of the vehicle to the left-hand side, which is a very complicated modification.

24 The Commission considered that that requirement amounts to a prohibition on registration in Poland of vehicles with the steering-wheel positioned on the right. It is of the opinion that where a vehicle satisfies the technical requirements defined in the separate directives referred to in Annex IV to Directive 2007-46, a Member State in the territory of which traffic moves on the right is not entitled to refuse registration of that vehicle on the ground that its steering-wheel is positioned on the right. The Commission considers that such a refusal constitutes, with regard to new vehicles, an infringement of Article 4(3) of Directive 2007-46 and of Article 2a of Directive 70-311, which oblige the national authorities to register a new vehicle irrespective of the position of its steering-wheel, in so far as the steering equipment satisfies the requirements of the latter directive. Such a refusal constitutes also, with regard to vehicles previously registered in another Member State, an infringement of Article 34 TFEU. Therefore, on 9 October 2009, the Commission invited the Republic of Poland to terminate those infringements.

25 On 8 December 2009, the Republic of Poland contested the Commission's complaints by, inter alia, claiming that, since Points 1.8 and 1.8.1 of Annexes I and III to Directive 2007-46 distinguish the hand of drive, a Member State is entitled to allow registration of a vehicle in its territory only if that vehicle is adapted for use on the side of the road in force in that State. In any event, the refusal to register vehicles which do not satisfy that condition does not constitute an unlawful restriction on the free movement of goods, for it is justified by the imperative requirements in the public interest to ensure road safety and protect the health and lives of people.

26 Since it was not convinced by that response, on 1 October 2010, the Commission sent the Polish Government a reasoned opinion, to which that Government replied on 30 November 2010. As it was not satisfied with that reply, the Commission decided to bring the present action.

27 By order of the President of the Court of 8 June 2012, the Republic of Lithuania was granted leave to intervene in support of the form of order sought by the Republic of Poland.

The action

28 As a preliminary point, it should be noted that the Commission draws a distinction in its application, between new passenger vehicles, in respect of which the national measure in question should be assessed in the light of Directives 2007-46 and 70-311, and vehicles previously registered in another Member State, in respect of which the assessment should be carried out on the basis of Article 34 TFEU. In its assessment, the Court will adopt that distinction.

The application of Directives 2007-46 and 70-311 to new passenger vehicles

Arguments of the parties

29 The Commission claims, in essence, that Directives 70-311 and 2007-46, and the separate directives referred to in Annex IV to the latter directive, regulate exhaustively the technical requirements which must be satisfied by new passenger vehicles and leave no discretion to the Member States in that field. The steering equipment of a vehicle is covered by those technical requirements, so that the obligation, provided for by a national regulation, to alter the position of that equipment is a technical requirement which the Member States are not authorised to impose. The Commission adds that the technical requirements provided for by those directives are intended to ensure a high level of road safety.

30 According to the Commission, it is apparent from the wording of Article 2a of Directive 70-311 and Article 4(3) of Directive 2007-46 that the side of a vehicle where the driver's seat is positioned is not a technical requirement, within the meaning of the directives relating to type-approval of new vehicles, connected with adapting the vehicle for driving on the left or on the right. The reference made, in several provisions of Directives 2007-46 and 70-311, to 'hand of drive: ... left-right' means only that the construction of the vehicle, concerning its steering equipment, satisfies the technical requirements, provided for in those directives, relating to the hand of drive and does not state that, in order to drive on the right, the steering equipment must be located on the left.

31 The Polish Government, supported by the Lithuanian Government, claims that the prohibition of registering vehicles with steering equipment on the right is not connected with considerations relating to the functioning or compliance of the steering equipment of those vehicles with the technical requirements of Directives 2007-46 and 70-311, but with the possibility for the driver of driving such vehicles safely on roads where traffic moves on the right. Those directives merely lay down requirements concerning manufacture, assembly and approval of vehicles and do not concern the position of the steering-wheel, since that is not connected with a technical requirement relating to the vehicle, but with road safety. The technical requirements also have a road safety aim, but are not the only measures allowing that safety to be ensured. Consequently, the national measure at issue does not come within the scope of those directives and should be assessed from the perspective of Articles 34 TFEU and 36 TFEU, irrespective of whether new or used vehicles are involved.

32 According to the Polish Government, paragraphs 1.8 and 1.8.1 of Annexes I and III to Directive 2007-46, and Appendix I, paragraph 1.8, of Annex I to Directive 70-311, establish a distinction between vehicles according to whether they are intended to be driven on the right or on the left. None of the provisions of those directives allows it to be claimed that a Member State is obliged to register a vehicle without being able to take account of the hand of drive adopted in that State. Moreover, the explanatory note (d) of Annex IX to Directive 2007-46 allows a Member State, in which driving on the right is obligatory, to require the steering-wheel to be moved to the left-hand side before the vehicle is registered.

Findings of the Court

33 It follows from the juxtaposition of those arguments that the main point of disagreement between the parties is whether the position of the driver's seat of a vehicle is included in the harmonised framework established by Directives 2007-46 and 70-311, or whether it does not come within that harmonisation, so that it is permissible for Member States, with a view to the registration of a new vehicle in their territory, to require, for the purposes of safety, that the driver's seat of that vehicle be moved to the side opposite the direction of the traffic.

34 In that regard, it should be noted that Directive 2007-46, a so-called 'framework directive', laid down, as is apparent from Article 1 thereof read in conjunction with recitals 2, 3 and 14 in the preamble thereto, a uniform type-approval procedure for new vehicles, based on the principle of total harmonisation as regards their technical characteristics, the specific technical requirements concerning the construction and functioning of vehicles being prescribed by the separate directives included in Annex IV to that directive.

35 It follows from the above-mentioned provisions that the aim of that harmonised framework is the establishment and functioning of the internal market, while seeking to ensure a high level of road safety by means of the total harmonisation of technical requirements concerning, inter alia, the construction of vehicles.

36 Thus, Article 4(3) of Directive 2007-46 provides that the Member States may not impede in any way, inter alia, the registration of vehicles on grounds related to aspects of their construction covered by that directive, if they satisfy the requirements of the latter.

37 The steering equipment and, correlatively, the position of the driver's seat which is part of that equipment, constitute essential elements of the design of a vehicle.

38 Although Directives 2007-46 and 70-311 do not determine the position of the driver's seat of a vehicle, by providing, for example, that it must always be placed on the side opposite the direction of the traffic, it does not follow that that element does not come within their scope. It must be considered that the European Union legislature granted in that regard a freedom to motor vehicle manufacturers that may not be cancelled or impeded by national legislation.

39 The steering equipment of vehicles is specifically covered by Directive 70-311, Article 2a of which requires the Member States not to prohibit, in particular, the registration of vehicles 'on grounds relating to [their] steering equipment' if the latter satisfies the requirements of that directive.

40 The prohibition of the refusal to register included in Article 2a thereof is categorical and general and the meaning of the wording 'on grounds relating to their steering equipment' is clear as regards its meaning, since the terms 'steering equipment' covers also the driver's seat, that is to say, the position of the steeringwheel of vehicles, an integral part of the steering equipment.

41 Article 2a was added to Directive 70-311 by the Act relating to the conditions of accession, inter alia, of Ireland and the United Kingdom of Great Britain and Northern Ireland to the European Communities, the only Member States, at that time, in which road traffic moved on the left-hand side of the road, without the list of requirements in Annex I to that directive being supplemented.

42 In that context, it cannot reasonably be considered that the European Union legislature was unaware of the fact that the accession of Member States in the territory of which the direction of road traffic was on the left, and one of which was a manufacturer of vehicles with, in principle, their driver's seat on the righthand side, was liable, in an internal market involving the right to free movement, to have an effect on driving habits, even to involve a certain risk connected with road traffic. By contrast, it must be concluded that the legislature took account of that potential risk and chose to adopt Article 2a of Directive 70-311.

43 It is apparent from those considerations that the reference made, in certain provisions of Directives 2007-46 and 70-311, to 'hand of drive: ... left-right', which must be stated on the information document for the purpose of typeapproval of a vehicle, and the indication, which must be made on the certificate of conformity, that the vehicle is 'adapted' to traffic on the right or on the left, may not cover fundamental elements of the construction of the vehicle, such as the position of the steering-wheel, but only other elements, such as the vehicles' lighting and windscreen wiping devices or indirect vision systems.

44 The same conclusion is valid with regard to explanatory note (d) concerning Annex IX to Directive 2007-46, according to which, where the purchaser's choice relates to such a vehicle, the constructor's declaration in the certificate of conformity does not restrict the right of Member States to require 'technical adaptations' with a view to its registration.

45 As was pointed out by the Advocate General in point 48 of his Opinion, the adaptations that may be required may not relate to the repositioning of the driver's seat, which would amount to a procedure having a significant impact on the design of the vehicle, contrary to the wording and purpose of Directive 70-311, but solely to procedures having a minimal impact such as those referred to in paragraph 43 of the present judgment.

46 In addition, the argument that only the grounds relating to technical requirements and not those seeking to ensure road safety come within the prohibition of the refusal to register included in Article 2a of Directive 70-311 cannot be accepted. First, as the Commission correctly states, the technical requirements defined by the directives relating to the approval of new vehicles aim to ensure a high level of road safety, so that it is not possible to restrict the scope of the prohibition referred to in Article 2a of Directive 70-311 to grounds other than those connected with road safety. Secondly, the interpretation suggested by the Polish and Lithuanian Governments would deprive Article 2a of its effectiveness, for that interpretation would permit the registration of new vehicles satisfying the technical requirements to be prevented for reasons connected with road safety, which is duly ensured by those technical requirements.

47 Consequently, it must be concluded that the position of the driver's seat, an integral part of the steering equipment of a vehicle, comes within the harmonisation established by Directives 2007-46 and 70-311, so that the Member States may not require, for reasons of safety, with a view to the registration of a new vehicle in their territory, the driver's seat of that vehicle to be moved to the side opposite the direction of the traffic.

The application of Article 34 TFEU to passenger vehicles previously registered in another Member State

Arguments of the parties

48 The Commission maintains that the registration of vehicles previously registered in another Member State is not covered by secondary European Union legislation, but by the rules of primary law concerning the free movement of goods. It considers that the contested national legislation, although applicable without distinction to all vehicles, constitutes a measure having equivalent effect to quantitative restrictions on imports since it has as its object or effect less favourable treatment of goods originating in other Member States.

49 The Commission claims that the legislation at issue is not suitable for attaining the road safety objective pursued, in the light of the other relevant factors which influence that safety. According to the Commission, the level of road safety does not depend on which side of the vehicle the steering equipment is placed, but is linked to the behaviour and experience of drivers, and the condition of the roads and vehicles. In any event, the Polish Government has not been able to show, as it is required to do, that authorisation for registration of vehicles with the steering equipment located on the right increases the number of traffic accidents and reduces the level of safety on Polish roads. Finally, the measure at issue is disproportionate, for other less restrictive measures, such as fixing additional external rear-view mirrors and the adaptation of lighting and windscreen wiping devices, would be capable of furthering the objective pursued.

50 The Polish Government considers that the contested legislation does not involve less favourable treatment and indirect discrimination of vehicles originating in other Member States, because, in Poland, vehicles are manufactured with the driver's seat on the right-hand side too. In any event, that legislation is justified from the point of view of road safety, held by the Court's case-law to be an imperative requirement in the public interest for the purpose of the protection of the lives and health of road users.

51 In the opinion of the Polish Government, the legislation at issue is, from that point of view, appropriate for attaining the objective pursued, in light of the fact that, when the direction of the traffic is on the right, the driver of a vehicle equipped with a steering-wheel on the right has a field of vision considerably reduced in comparison with that of a driver whose vehicle is equipped with a steering-wheel on the left, which is not disputed by the Commission. That constitutes a danger for road safety, the level of protection of which is to be assessed by the Member States. The contested measure is, moreover, proportionate. The alternative measures suggested by the Commission are either completely disproportionate, if not dangerous, or do not ensure the same level of protection.

Findings of the Court

52 In view of the Court's settled case-law, the contested legislation constitutes a measure having equivalent effect to quantitative restrictions on imports within the meaning of Article 34 TFEU, in so far as its effect is to hinder access to the Polish market for vehicles with steering equipment on the right, which are lawfully constructed and registered in Member States other than the Republic of Poland (see, concerning the origins of that case-law, Case 8-74 Dassonville [1974] ECR 837, paragraph 5; Case 120-78 Rewe Zentral, 'Cassis de Dijon' [1979] ECR 649, paragraph 14; and, more recently, Case C-110-05 Commission v Italy [2009] ECR I-519, paragraph 58).

53 In accordance with that case-law, such legislation may be justified in order to meet imperative requirements, on condition that it is appropriate for securing the attainment of the objective pursued and that it does not go beyond what is necessary in order to attain that objective (Commission v Italy, paragraph 59 and case-law cited).

54 The Polish Government puts forward, as justification for the legislation at issue, the need to ensure road safety, about which it is not disputed that it constitutes, according to the case-law, an imperative requirement relating to the public interest capable of justifying a hindrance to the free movement of goods (Commission v Italy, paragraph 60 and case-law cited).

55 It should be noted that, in accordance with equally settled case-law, in the absence of full harmonisation at European Union level, which is the case of registration in a Member State of vehicles already registered in another Member State, it is for the Member States to decide upon the level at which they wish to ensure road safety in their territory, whilst taking account of the requirements of the free movement of goods within the European Union. In that regard, it is for the competent national authorities to show that their legislation is appropriate for ensuring the attainment of the objective pursued and does not go further than is necessary in order to attain that objective (see, to that effect, Commission v Italy, paragraphs 61 and 62 and case-law cited).

56 With regard, in the first place, to the appropriateness of the legislation at issue, the Polish Government contends that the positioning of the steering-wheel of a vehicle on the same side as the direction of the traffic reduces the driver's field of vision, makes overtaking and manœuvres considerably more difficult, in particular on single-carriageway roads with two-way traffic, like the majority of roads making up the Polish road network, and increases, thereby, the risk of accidents.

57 In that regard, it should be noted that national legislation which prohibits the registration, in the territory of a Member State, of a vehicle with steering equipment positioned on the same side as the direction of the traffic, is likely to reduce the number of such vehicles in use in that Member State and, consequently, the risk connected with that use. As regards such a risk, it corresponds to empirical evidence that the position of the steering-wheel directly affects the driver's field of vision and it is, furthermore, confirmed by the standard practice of motor vehicle manufacturers and dealers consisting in offering for sale, in principle, in every country, vehicles with steering-wheels situated on the side opposite the direction of the traffic.

58 With regard, in the second place, to whether the legislation at issue goes beyond what is necessary in order to attain the objective pursued, the Polish Government contends that no other measure and no other alternative technical means ensure the same level of protection as the measure at issue in the light of the traffic risks connected with the position of the steering-wheel on the right.

59 In that regard, it should be noted, first of all, that the risk arising from the use in the Polish territory of vehicles with the steering-wheel on the right is the same, whether those vehicles are new or previously registered in another Member State. With regard to new vehicles, it was concluded, in paragraph 42 of the present judgment, that the legislature took account of that potential risk when it adopted Article 2a of Directive 70-311.

60 It must be noted, next, that the legislation at issue provides for exceptions with regard to the use of vehicles equipped with a steering-wheel on the right by people who reside in other Member States, for example tourists, and travel to Poland for a limited period, which shows that that legislation tolerates the risk involved in such use. The risk taken in the area of road safety is, in that case, the same, particularly as the flow of those visitors in Polish territory is continuous, and the risk cannot be considered to be less important on the ground that the visitors visiting Poland for a limited period with such a vehicle drive more carefully than those whose vehicle is registered in that Member State.

61 In addition, according to the information at the disposal of the Court, the legislation of 22 Member States, that is to say, the large majority of the Member States, either allows explicitly the registration of vehicles which have their steering equipment on the same side as the direction of the traffic, or tolerates such, even if, in some of those Member States, the state of the roads is similar to that in the Republic of Poland (see, by analogy, Case C-333-08 Commission v France [2010] ECR I-757, paragraph 105).

62 Moreover, it should be noted that the statistical data relied on by the Polish Government do not prove to the requisite legal standard the relationship between the number of accidents put forward and the involvement of vehicles with the driver's seat situated on the right.

63 It must be pointed out, finally, that there exist means and measures less restrictive of the free movement of goods than the measure at issue and, at the same time, capable of significantly reducing the risk which could be created by the use of vehicles with the steering-wheel placed on the same side as the direction of the traffic. It must be pointed out in particular that the Member States enjoy in that regard discretion for the purpose of imposing measures, including those proposed by the Commission, that would be capable, according to the state of technology, of ensuring sufficient rear and forward visibility for the driver of the vehicle with the steering-wheel positioned on the same side as the direction of the traffic.

64 Therefore, in contrast to the situation which led to the judgment in Commission v Italy, it does not appear, in the light of the foregoing considerations, that the measure at issue may be considered to be necessary in order to attain the objective pursued. In the light of those considerations, the measure at issue is not compatible with the principle of proportionality.

65 Consequently, it must be declared that the Republic of Poland has failed to fulfil its obligations, in accordance with the Commission's application.

Costs

66 Under Article 138(1) of the Rules of Procedure of the Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has applied for costs and the Republic of Poland has been unsuccessful, the latter must be ordered to pay the costs. Under Article 140(1) of the Rules of Procedure, Member States intervening in the proceedings are to bear their own costs; it must therefore be held that the Republic of Lithuania is to bear its own costs.

On those grounds, the Court (Fifth Chamber) hereby

1. Declares that, by making registration in its territory of passenger vehicles having their steering equipment on the right-hand side, whether they are new or previously registered in other Member States, dependent on the repositioning of the steering wheel to the left-hand side, the Republic of Poland has failed to fulfil its obligations under Article 2a of Council Directive 70-311-EEC of 8 June 1970 on the approximation of the laws of the Member States relating to the steering equipment for motor vehicles and their trailers (OJ 1970 L 133, p. 10), Article 4(3) of Directive 2007-46-EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (Framework Directive) (OJ 2007 L 263, p. 1), and under Article 34 TFEU.

2. Orders the Republic of Poland to pay the costs.

3. Orders the Republic of Lithuania to bear its own costs.